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Want to abolish the Senate? Don't hold your breath, expert says

The institution of the Senate and its credibility have hit rock bottom, says Errol Mendes, a professor of constitutional law at the University of Ottawa.

Errol Mendes, a professor of constitutional law at the University of Ottawa, says the Senate needs to bring back some of the trust and credibility that has been so severely damaged by the auditor general's report.

In the wake of the auditor general’s scathing report on senate expense abuses, many Canadians are chomping at the bit to just get rid of the institution.

But while abolishing it may be attractive, Errol Mendes, a professor of constitutional law at the University of Ottawa, says it’s just about impossible — and maybe not even desirable.

The Star spoke to Mendes about what the future of Senate reform might look like, and what he thinks should be done with the Red Chamber.

How will the auditor general’s findings influence the push for Senate reform?

Mendes: All of this raises a really interesting issue of how does one govern a democratic, parliamentary institution, which under our constitution is almost supposed to be above the law?

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I think this is more and more becoming a major existential threat.

The institution [of the Senate] and its credibility have hit rock bottom. The most egregious cases have caused such a lack of credibility in the institution that it has triggered the NDP to make abolition of the Senate an election plank, which I think is a huge mistake.

It’s not just the NDP, many people are calling to abolish the Senate after this scandal. Why are you opposed?

It’s not possible. Even if they suggest proposing a referendum and there’s a majority that agrees with it, it still doesn’t solve the constitutional problem. You would still need the consent of the 10 provinces, and Quebec has already said “we’re not interested” and Ontario has come pretty close, too.

The Atlantic provinces would be dead against it. It’s a very technical reason — they’re representation in the House of Commons is based on the fixed number of Senate seats they have. It’s a very curious thing.

You can’t tamper with one or the other without affecting the other.

So what is the next best solution?

There’s already one on the table, it’s by no means perfect but it’s the one Liberal leader Justin Trudeau has suggested. It’s to make his own Liberal senators independent, so they can demonstrate variance with the party —which they have with Bill C-51.

What Trudeau is suggesting is to have a constitutional way of having an independent selection process.

What about elected reform?

Mendes: Again, you need the consent of the provinces. It affects not just the power of the prime minister, it affects the power of the Governor General. If the elections are taking place in the provinces, then it’s reducing his power, and to reduce his power you need consent of all seven provinces.

You run into the same problem as the abolition. Quebec would say, “Well if you want that, I want a whole bunch of things that I want to get done” and you’re back to Meech Lake and Charlottetown. So it’s not in the cards either.

In some respect, I do think there is some value to having an upper house that is less partisan and less toxic in terms of partisanship.

One of the things that became really clear in the audit was the degree to which senators have been acting with impunity. If an expense was justifiable to them, it was justifiable, period. Why is there this culture of entitlement in the Senate?

Mendes: I’m not at all surprised at that culture of entitlement. Some of the most devastating corporate scandals [like Enron] happen when people at the top of any organization, be it public or private, essentially are laws unto themselves.

So it’s critical, with institutions like the Senate where there essentially is no one over them, to have what the Auditor General is recommending, which is independent oversight.

Abuse will still happen, but without those rules abuse would happen even more.

The House of Commons has to do the same thing. MPs are resisting having the Auditor General do the same thing with them. What’s fundamentally at play with the Senate could also be at play in the House, all the way up to the Prime Minister’s Office.

You mention that an appointed Senate can be less partisan. But certainly what we’ve seen over the past few years is the exact opposite — the Senate has been used to push forward very partisan legislation.

Mendes: One reason is the dominance of the PMO over the House of Commons, let alone the Senate. This present Prime Minister has taken it to its zenith, but it started even with Pierre Trudeau, who essentially made the prime minister dominant over the House of Commons. And then that power is extended to the Senate, so that appointments have been filled essentially with people who have massive IOUs to the prime minister.

The present selection process of the Senate has become almost an appendage of the party in power. And that has to stop.

How would you fix the Senate?

What I’m suggesting is that you can create these sort of next-best solutions. to try and start bringing back some of the trust and credibility that has been so severely damaged by this report.

Let’s say there was an non-partisan appointment committee that had absolutely blue-chip credibility, but because the Prime Minister could accept them or reject them, it would be constitutionally sound. And with that would have to come exactly what the AG has suggested: independent oversight.

There’s been one appointment that shows that you can have someone who knows what the institution is really all about. It was made by former Prime Minister Paul Martin, who appointed Sen. Hugh Segal, a Conservative, who basically became beloved by all parties. To this day, he’s regarded as one of the most honoured politicians and a person with the greatest integrity.

Think about what it would be like to have a Senate filled with people like Hugh Segal, or Sen. Gen. Romeo Dallaire? Very credible individuals who all Canadians would say: yes, they have a right to be there.

Suggest a name that could start repairing the damage.

Chris Hadfield. The Nobel Prize winners that we’ve had. Think of the difference that would make. Instead of the more recent ones that were made.

What the Senate needs more than anything else is credibility and respect. It’s a slow process and it can be done.

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